Defense attorney asks jury to convict man of lesser charge than gang rape in high school assault case

MARTINEZ -- A defense attorney for a 22-year-old Richmond man on Thursday asked jurors to convict her client of sexual battery -- and not gang rape -- for his role in the attack on a 16-year-old girl on the Richmond High School campus in 2009.

Attorney Jane Elliot said her client was on top of the victim for a few seconds, but he did not have sex or attempt to have sex with the victim, who authorities say was assaulted in a dark campus courtyard for more than two hours after leaving a homecoming dance and drinking with a group of males.

"I ask you to find him guilty of what he did, and that's sexual battery," Elliot said.

Jose Montano (Richmond Police Department)

According to the California Penal Code, sexual battery is punishable by as much as four years in prison. Montano has been in jail since his arrest shortly after the assault.

Montano and 20-year-old Marcelles Peter, of Pinole, each face life in prison if convicted at their dual jury trial of gang rape, forcible oral copulation in concert, sexual penetration in concert and a charge enhancement for causing great bodily injury.

The victim testified that she remembers nothing between having a polite conversation with several young men at the courtyard picnic tables and waking from a coma in a trauma center the next day. She had a near-fatal blood-alcohol level and severe head trauma from being repeatedly struck during the attack.

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Peter's attorney asked for a full acquittal during his closing statement Wednesday. On Monday, the juries will begin deliberating separately.

Their former co-defendants, Ari Morales, 19, and Manuel Ortega, 22, took plea deals in the case and are serving 27 and 32 years, respectively. Elvis Torrentes, 25, and John Crane, 46, are awaiting trial.

In his closing argument to Montano's jury Thursday, prosecutor John Cope described the evidence against Montano as compelling and supportive of a guilty verdict on all counts.

Multiple people, including some of Montano's friends, described Montano getting on top of the girl and moving his body in what they thought was an act of rape. Another witness described Montano bragging about raping her the day after the Oct. 24, 2009, attack.

Morales described Montano putting on a condom, and Montano's DNA was on a condom wrapper found by police.

At least one witness told police that Montano attempted to penetrate the girl with a skateboard, although another witness said that was Ortega.

"The evidence is pretty overwhelming that Mr. Montano is guilty of doing something in this case," Cope said.

"If he's guilty of the charges, he should be convicted of the charges, and nothing less than that," he added.

Elliot said the testimony as to Montano didn't mesh, and he shouldn't be convicted of what other people think they saw.

No one described seeing Montano unzip his pants, expose himself or penetrate the victim, she said. Just because Ortega and Morales assaulted the girl, it doesn't mean that Montano was acting in concert with them when he got on top of the girl for a few seconds when he was fully dressed, Eliot saidCope, arguing that Montano did rape and used a condom in doing it, said it does.

"The law says no matter how big a part you played, if you played a part, you're guilty," the prosecutor said. "Maybe he didn't enjoy it as much as he thought he would, but he did it."